Rhesis AI — Licensing Terms and Conditions for 'Self-Hosting'

These Licensing Terms and Conditions 'Self-Hosting' (hereinafter referred to as "Self-Hosting Terms") shall apply to any contract between Rhesis AI GmbH, August-Bebel-Str. 89, 14482 Potsdam, Germany (hereinafter referred to as "Rhesis AI") and the customer (hereinafter referred to as the "Customer") for the provision and licensing of proprietary software components by Rhesis AI to Customer for Customer's hosting and operation of the software on a Customer-controlled server. Rhesis AI and the Customer are hereinafter also referred to individually as "Party" and jointly as "Parties".

Subject Matter
1. These Self-Hosting Terms govern the provision and licensing of Rhesis AI's proprietary software components for usage by the Customer for the agreed term.
2. Details of the software components to be licensed by Rhesis AI for the Customer's own hosting and operation (hereinafter the "Licensed Software"), are laid out in the service description referenced in the licensing contract between Rhesis AI and the Customer (the "Licensing Contract"). Unless otherwise agreed by the Parties in the Licensing Contract, the fees specified by Rhesis AI on its website apply for the relevant Licensed Software.
3. The Customer represents and warrants that it is acting in a business capacity (Unternehmer) within the meaning of § 14 of the German Civil Code (BGB). The use of the Licensed Software by consumers (Verbraucher) is not permitted.
4. Services and deliverables not expressly agreed upon are not part of the subject matter of the Licensing Contract. In particular, Rhesis AI shall not be obliged to provide the Customer with source code of the Licensed Software, to install the software or to provide maintenance and support services.
5. The Customer's terms and conditions shall not apply, except to the extent Rhesis AI has expressly agreed to the Customer's terms and conditions in writing.
Provision of the Licensed Software
1. Rhesis AI shall provide the Customer with the Licensed Software in object code form, together with a user documentation in English language. Rhesis AI shall not be obliged to provide the Customer with the source code of the Licensed Software, whereas Section 3 applies for Third Party Components.
2. Rhesis AI shall provide the Customer with the Licensed Software by handing it over on a data carrier, transmitting it to the Customer electronically, or by making it available for download and informing the Customer of the opportunity to download the Licensed Software. The risk of accidental loss and accidental deterioration (Gefahrübergang) shall pass to the Customer upon handover, transmission or information about the download option, as the case may be.
3. If Rhesis AI provides the Customer with patches, updates, upgrades, fixes or other changes to the Licensed Software (collectively "Updates"), such Updates are subject to the usage rights and usage restrictions applicable to the underlying Licensed Software.
Third-Party Components
1. For open source software contained in the Contractual Software as well as for proprietary software of third parties (collectively "Third-Party Components") that is delivered by Rhesis AI along with the Licensed Software, the license terms applicable to the respective Third-Party Component ("Third-Party License Terms") shall apply exclusively.
2. Upon request, Rhesis AI shall provide the Customer with a list of the Third-Party Components delivered along with the License Software and the relevant Third-Party License Terms, including the relevant open source license terms.
License Grant
1. Upon full payment of the agreed remuneration, Rhesis AI shall grant the Customer a non-exclusive, non-transferable and non-sublicensable right, limited to the term of the Licensing Contract, to use the Licensed Software at the Customer's premises for its own internal business purposes. The Customer may host and operate the Licensed Software on its own servers or have the Licensed Software hosted by a third party on the Customer's behalf.
2. All exclusive rights and title to the Licensed Software and any Updates shall, in the relationship between the Parties, remain entirely with Rhesis AI. The Customer shall not be permitted to use or have the Licensed Software used beyond the scope of use expressly permitted in Section 4.1. The Customer shall in particular not be permitted by Rhesis AI to edit, disassemble, reverse engineer, modify, distribute, lease or make publicly available the Licensed Software. The Customer's mandatory statutory rights shall remain unaffected.
3. For Third-Party Components, Section 3 applies.
4. The Customer shall promptly notify Rhesis AI if the Customer becomes aware of a violation of this Section 4.
Customer's Cooperation Duties and Responsibilities
1. The Customer shall promptly provide Rhesis AI with any information from within the Customer's sphere that is reasonable requested by Rhesis AI for the implementation of the Licensing Contract.
2. Unless expressly agreed otherwise, the Customer shall solely be responsible for the successful installation, configuration, hosting and operation of the Licensed Software. The Customer shall ensure that the Contractual Software is installed and used in an operating environment that is supported by Rhesis AI.
3. The Customer shall only use the Licensed Software within the contractually permitted scope and must ensure compliance with any statutory and regulatory requirements applicable to the Customer's use of the Licensed Software. In case the Parties have agreed additional usage restrictions for the use of the Licensed Software (e.g. a maximum number of Users), the Customer shall take appropriate measures to ensure compliance with these usage restrictions.
4. The Customer must not deploy test cases generated with the support of the Licensed Software on systems not owned by the Customer or for which the Customer has not obtained the explicit prior written authorization of the owner or operator.
5. The Customer shall adequately test the Licensed Software for usability and suitability for the Customer and the Customer's purposes prior to their operational use, and shall commence such operational use only if the test results are positive. The foregoing shall not affect the Customer's statutory and contractual obligations to inspect and give notice of defects (Rügeobliegenheiten).
6. The Customer is aware and agrees that the Licensed Software can support the Customer in generating test cases; however, the selection, deployment, and use of test cases as well as any testing of systems and its effects remain solely and entirely the responsibility of the Customer. Rhesis AI assumes no responsibility or liability for any test cases deployed by the Customer, for the testing of systems by the Customer, or for any impact such testing may have on the respective systems.
7. The Customer shall bear sole responsibility for the security of its systems, interfaces and transmission paths, in particular for their protection against malware and attacks. To this end, the Customer shall implement measures in accordance with the current state of the art and shall regularly and properly back up data and configurations in accordance with the current state of the art. When commencing measures on the Licensed Software, Rhesis AI may assume that the Customer has properly backed up all potentially affected data and the configuration of the Contractual Software in accordance with the current state of the art, unless specific indications suggest that this is not the case.
8. The Customer shall promptly install any Updates provided to the Customer to remove defects. The Customer shall bear responsibility for the consequences of failing to install any such Update.
9. In the event of any malfunction, functional failure, or impairment of the Licensed Software, the Customer shall promptly inform Rhesis AI as precisely as possible. If the Customer fails to make such a notification, § 536c of the German Civil Code (BGB) shall apply. If remote access to the Customer's account is necessary for analyzing or rectifying the issue, the Customer will facilitate such access.
10. The Customer shall provide all cooperation duties and services at its own expense, in a timely manner, and in a professionally proper manner.
Fees and Payment Terms
1. The Customer shall be obligated to pay the fees agreed upon in the Licensing Contract. All prices and price agreements are subject to the applicable statutory value-added tax at the time the relevant service is provided.
2. Unless expressly agreed otherwise, the claim to payment of the agreed fees shall become due in advance for each term.
3. Payments are due on the day of invoicing (invoice date) and is payable within thirty (30) days of the invoice date.
Warranty in case of Defects
1. Rhesis AI warrants that the Licensed Software meets the agreed-upon quality and that the contractual use of the Licensed Software by the Customer does not infringe upon any rights of third parties.
2. Any material defects (Sachmängel) of the Licensed Software shall be remedied by Rhesis AI within a reasonable period of time.
3. In the event of defects of title (Rechtsmängel), Rhesis AI shall provide the Customer with a contractual scope of use (vertragsgemäße Benutzungsmöglichkeit) of the Licensed Software or eliminate the defect of title by adjusting the Licensed Software accordingly. Rhesis AI will appropriately take into account the legitimate interests of the customer in this process.
4. Rhesis AI may remedy defects by providing the Customer with a corresponding Update for the Licensed Software.
5. If the Customer asserts a defect even though there is actually no defect, the Customer shall reimburse Rhesis AI for any expenses and costs incurred as a result, unless it was not recognizable to the Customer with the care customary in the industry that there was no defect.
6. In all other respects, §§ 535 et seq. of the German Civil Code (BGB) shall apply with the proviso that the strict liability for defects existing at the time of conclusion of the contract pursuant to § 536a para. 1, 1st alternative of the German Civil Code (BGB) shall be excluded.
IPR Infringement
1. If a third party asserts claims against the Customer based on an infringement of intellectual property rights in connection with the Licensed Software, the Customer shall notify Rhesis AI without undue delay and in text form.
2. Rhesis AI shall reasonably assist the Customer in defending against such claims by providing available relevant information concerning the Licensed Software.
3. The statutory provisions and contractual obligations of Rhesis AI regarding material defects and defects of title, including those under Section 7, shall remain unaffected.
Liability
1. Rhesis AI shall be liable without limitation in cases of intent, gross negligence, and culpable injury to life, limb, or health.
2. In the event of slight negligence, Rhesis AI shall only be liable in the event of a breach of essential contractual obligations, i.e. obligations the fulfillment of which is a prerequisite for the proper execution of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and on the fulfillment of which the Customer may regularly rely (Kardinalpflichten). In these cases, Rhesis AI's liability is limited to damages that are foreseeable at the time of the conclusion of the contract and are typical for the contract. The unlimited liability according to Section 9.1 remains unaffected.
3. Beyond Section 9.1 and Section 9.2 Rhesis AI shall not be liable for slight negligence.
4. The above limitations of liability shall not apply to liability under the Product Liability Act, and within the scope of guarantees by Rhesis AI assumed in writing.
5. Section 9 shall also apply in favor of the Rhesis AI's employees, representatives, and vicarious agents.
Term and Termination
1. Unless agreed otherwise by the Parties, the Licensing Contract is concluded for the term agreed in the Licensing Contract (the "Fixed Term") and shall automatically end at the end of the Fixed Term without a termination notice being required. The Parties may at any time extend the Fixed Term by mutual agreement in writing.
2. During the Fixed Term, either Party may terminate the Licensing Contract without cause (ordentliche Kündigung) with a notice period of two (2) months giving effect to the termination at the end of the relevant contract year. However, if a minimum term is agreed upon between the Parties, termination without cause is possible by giving effect to the termination at the end of this minimum term at the earliest.
3. The Parties' right to termination for good cause remains unaffected. A good cause shall particularly be deemed to exist if
  1. the other Party repeatedly violates material contractual obligations under the Licensing Contract after written notice and reasonable cure period;
  2. the other Party commits a tortious act in connection with the Licensing Contract; or
  3. the other Party ceases business operations in whole or in part, and continued operation is not secured by a direct legal successor.
4. Any termination must be in text form to be effective.
5. Upon termination of the Licensing Contract, for whatever reason, the Customer's contractual rights to use the Licensed Software shall end. Upon Rhesis AI's request, the Customer shall promptly delete the Licensed Software from its systems and confirm the deletion in writing.
Confidentiality
1. The Parties shall treat as confidential all Confidential Information disclosed or otherwise becomes known to them in connection with the Licensing Contract, and shall not use or disclose such information except as necessary for the performance of this Agreement. "Confidential Information" of a Party means information relating to competitively relevant know-how, information marked as confidential or otherwise identifiable as confidential on the basis of an objective recipient horizon, as well as trade secrets of a Party.
2. Either Party will
  1. treat the other Party's Confidential Information as confidential and use it only for the performance of the Licensing Contract;
  2. not disclose or make accessible the other Party's Confidential Information to their employees or third parties, except to the extent absolutely necessary for the performance of the Customer Agreement (need-to-know) and only if such employees or third parties have been obliged to maintain confidentiality; and
  3. protect the other Party's Confidential Information against access by unauthorized persons through appropriate and suitable measures (e.g., access control, encryption).
3. Section 11.2 shall not apply to Confidential Information, which
  1. a Party has lawfully received or receives from a third party, without breaching a confidentiality obligation;
  2. was already generally known at the time of the conclusion of the Licensing Contract or subsequently become generally known without any breach of the obligations contained in the Licensing Contract;
  3. already existed with a Party prior the establishment of the business relationship and is not subject to a confidentiality obligation; or
  4. is developed independently by a Party.
4. Furthermore, the Parties may disclose Confidential Information to the extent required by law or by governmental authorities. In such case, the Party concerned shall promptly inform the other Party in writing of the scope and basis of the disclosure.
5. The confidentiality obligations remain in effect for a period of three (3) years after the end of the Licensing Contract.
Marketing and Reference
1. Rhesis AI may publish and otherwise use the Customer's name and logo in press releases and other marketing materials as well as for advertising purposes on social media platforms and elsewhere on the internet, also as a reference customer and in connection with Rhesis AI's products and services. Rhesis AI shall, to the extent possible, take into account design specifications provided by the Customer for this purpose.
2. The Customer may revoke the permission pursuant to Section 12.1 by notifying Rhesis AI in writing. Upon receipt of such revocation, Rhesis AI's authorization pursuant to Section 12.1 shall cease with effect for the future. In particular, Rhesis AI shall not be obliged to destroy any marketing materials or communications already printed or produced prior to receipt of the revocation, or to remove or recall any published marketing materials or communications.
Data Protection
The data processing agreement available on Rhesis AI's website shall be an integral part of the SaaS Contract.
Governing Law, Place of Jurisdiction
1. The Licensing Contract shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
2. The exclusive place of jurisdiction for all disputes arising from or in connection with the Licensing Contract shall be Potsdam, Germany.
Miscellaneous
1. Rhesis AI may engage subcontractors as vicarious agents (Erfüllungsgehilfen). Rhesis AI shall be liable for actions and omissions of vicarious agents as if they were Rhesis AI's own actions or omissions.
2. The Parties may only assign rights or obligations arising under the Licensing Contract with the consent of the respective other Party. § 354a of the German Commercial Code (HGB) remains unaffected.
3. The Customer may only set off against Rhesis AI claims arising from the Licensing Contract which are undisputed or have been finally legally established by a court of law and may only exercise a right of retention on the basis of such claims.
4. Should individual provisions of the Licensing Contract be or become invalid, this shall not affect the validity of the remainder of the Licensing Contract. The invalid provision shall be replaced by the statutory provisions.
5. The Licensing Contract conclusively and exclusively governs the relationship between the Parties in connection with the use of the Licensed Software. The Parties have not concluded any oral side agreements. Amendments, supplements and additions to the Licensing Contract shall only be valid if agreed between the Parties in writing. This shall also apply to amending this written form clause itself. Unless expressly otherwise agreed, Text form is sufficient to fulfill any written from requirement.

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